TMI Blog2017 (2) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant words “nor on the same facts … … …” clearly show that for latter part of Section 300(1) to apply, the “same facts” should have been tried and determined in the earlier trial conducted for any other offence. Though the accused may have been technically “acquitted” in respect of one of such complaints, there would be no determination of any issue of fact, or law, since no trial had taken place determining any issue of fact, or law. However, if one of such complaints were to result in an acquittal after a trial, the findings returned by the Court in its decision “would constitute estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/ reception of evidence to disturb the findings of fact when the accused is tried subsequently for a difference offence”. Since the “trial” in the complaint case under section 138 of the NI Act had not taken place, there would be no question of the petitioner accused being “tried again”. In the present case, the learned Judicial Magistrate, Gurugram, was dealing with the complaint of the complainant u/s 138 of Negotiable I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof . 3. The submission of the petitioner is that, since on the same facts , the two offences were alleged against the petitioner, and the petitioner stands acquitted in respect of the offence u/s 138 of Negotiable Instrument Act, he cannot be charged and tried for the offence u/s 420/406/34 IPC. In support of his submission, learned counsel for the petitioner has sought to place reliance on the decision of the Supreme Court in Kolla Veera Raghav Rao v. Gorntla Venkateswara Rao Anr., rendered by a bench of two learned Judges of the Supreme Court on 01.02.2011 in Crl A No.1160/2006 . Since the said judgment is contained in a short order, I consider it appropriate to set it out, insofar as it is relevant: Learned counsel for the appellant submitted that the appellant was already convicted under Section 138 of the Negotiable Instruments Act, 1881 and hence he could not be again tried or punished on the same facts under Section 420 or any other provision of IPC or any other statute. We find force in this submission. It may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India, which incorporates the doctrine of autrefois acquit i.e. the doctrine against double jeopardy, and for the purpose of section 300 Cr PC, section 71 IPC, and section 26 of the General Clauses Act, it is the ingredients of the offences in the earlier case as well as in the later case which must be the same, and not different. 5. I may observe that upon this later decision being pointed out by Mr. Mahajan, counsel for the petitioner urged that the decision of the Supreme Court in Kolla Veera Raghav Rao (supra) is the earlier decision, and the same had not been considered by the Supreme Court in Sangeetaben (supra) which is also a decision of two learned Judges. Counsel for the petitioner had, therefore, urged that the subsequent decision would have to be considered as per incuriam in the light of the decision in Sundeep Kumar Bafna v. State of Maharashtra Anr., 2014 (2) JCC 1264 and in particular para 15 thereof, wherein the Supreme Court, inter alia, observed that: It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was taken against the accused under the Customs Act. Later on, prosecution was launched against the accused in a criminal court charging him with commission of offence u/s section 8A of the Foreign Exchange Regulations Act, 1947. The plea of double jeopardy was raised by the accused seeking protection under Article 20(2) of Constitution of India. The Supreme Court held that the said plea of double jeopardy is based on the ancient maxim nemo debet bis punire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter . 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the act or omission constituting an offence under two or more enactments , the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to shall not be liable to be punished twice for the same offence . If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. (emphasis supplied) 12. Reference was also made to Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682 , wherein the court held: 11. The previous case in which this accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter and that case was finally disposed of by this Court in Sardul Singh Caveeshar v. State of Bombay [AIR 1957 SC 747 : 1957 Cri LJ 1325 ] . Therein it was found that Caveeshar was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter in his favour. The present case relates to a different conspiracy altogether. The conspiracy in question was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gether with the consequences which resulted therefrom constituted a different offence, he may again be tried for that different offence arising out of the consequences, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted. (4) A person who has once been tried by a court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might have been convicted under the Code of Criminal Procedure. (emphasis supplied). 14. At this stage, I may observe that the submission of counsel for the petitioner is that the first rule quoted above is applicable in the facts of the present case inasmuch, as, the learned Magistrate trying the complaint of the respondent u/s 138 Negotiable Instrument Act had the competence to try the offence alleged against the petitioner in the FIR in question. Not having been tried for the same, the petitioner cannot be now tried for the said offence. This submission shall be dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge .(emphasis supplied). 19. Pertinently, in Sangeetaben (supra), the issue of double jeopardy was raised before the Supreme Court in the context of a complaint u/s 138 of Negotiable Instrument Act being preferred and a prosecution being launched u/s 406/ 420 IPC on the same facts. In that respect, the Supreme Court observed: 37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the NI Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 of the NI Act, the mens rea i.e. fraudulent or dishones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically acquitted by application of Section 256 CrPC, his acquittal is not after a trial. Thus, in my view, it cannot be said that the petitioner is a person who has once been tried by a Court of Competent jurisdiction . All that can be said is that he is a person who has been acquitted. Acquittal may result with, or without, a trial like in the present case. 23. Though in a different context, the expression trial and tried were considered, firstly, by the Supreme Court in State of Bihar Vs. Ram Naresh Pandey Another, AIR 1957 SC 389 , and, thereafter, more exhaustively in Khazansingh Others Vs. State of Rajasthan, AIR 1967 Raj 221. The relevant discussion in Khazansingh (supra) may be reproduced: 10. x x x x x x x x x In State of Bihar v. Ram Naresh, AIR 1957 SC 389 , an authority on which both the learned counsel placed their reliance the words trial and tried came to be considered with reference to the procedure contained in Section 494 of the Cr PC . Their Lordships observed. The words tried and trial appear to have no fixed or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation by a competent Court of the facts or law in dispute or put in issue in a case. It is the judicial examination of issues between the parties whether they are of law or of fact . 16. This appears to have been taken from Tomlin's Law Dictionary . In Ganesh v. State, ILR (1962) 12 Raj 996 , this Court has held: The proceedings under Section 251-A(1) and (2) of the Cr PC cannot be regarded as in the nature of a trial. The procedure laid down under these sections in fact begins in the accepted sense of that term when the charge is read and explained to the accused and he is asked whether he is guilty or claims to be tried . 17. Broomfield J. in Dagdu Govindset v. Punja Vedu, AIR 1937 Bom 55, observed. But according to my experience of the administration of Criminal justice in this Presidency, which is not inconsiderable, the Courts have always accepted the definition of trial which has been given in (1898) 25 Cal 863, that is to say, trial has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and defence, if the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which commences when the case is called on with the Magistrate on the Bench; the accused in the dock, and; the representatives of the prosecution and defence if the accused be defended, present in Court for the hearing of the case. Lastly and most importantly, the words trial and tried have no fixed or universal meaning. These are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration. 29. In the facts of the present case, the acquittal of the petitioner accused in the complaint case under Section 138 of the NI Act was a result of nonappearance of the plaintiff and by resort to Section 256 of the Code. There was no determination, one way or another, of any issue of fact or law by the learned Magistrate, and there was no trial by the learned Magistrate in the said complaint case. No finding or decision was rendered- either on facts, or in law by the learned Magistrate who had acquitted the accused. The result of such acquittal, by force of Section 300(1), would be that while such acquittal remains in force , the petitioner accused shall not be liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of time i.e. they were post dated. In relation to dishonor of each of the cheques, a separate and independent cause of action and a separate offence would arise. The complainant would be entitled to maintain separate and distinct complaints in respect of each of the dishonoured cheques. Now, if one of such complaints were to be dismissed and the accused acquitted by resort to Section 256 Cr.P.C., could it be said that since the other complaints- in respect of the other dishonoured cheques were issued in relation to the same transaction, i.e. on the same facts , they would also be liable to be dismissed by resort to Section 300(1) Cr.P.C.? In my view, the answer is an obvious NO . This is simply for the reason that though the accused may have been technically acquitted in respect of one of such complaints, there would be no determination of any issue of fact, or law, since no trial had taken place determining any issue of fact, or law. However, if one of such complaints were to result in an acquittal after a trial, the findings returned by the Court in its decision would constitute estoppel or res judicata against the prosecution, not as a bar to the trial and convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable. 33. In the present case, the learned Judicial Magistrate, Gurugram, was dealing with the complaint of the complainant u/s 138 of Negotiable Instrument Act. Merely because in the said complaint, the facts which constitute offences u/s 406/420 IPC may have been laid out, it does not follow that the Magistrate was obliged to take cognizance of the said offences and he having failed to do so, the FIR in question could not have been registered against the accused. Pertinently, in Kokkiligada Meerayya(supra), the second rule which emerges from the Code and, as taken note of by the Supreme Court is as follows: (2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made . 34. Thus, even if the petitioner was tried in respect of one of the charges, namely, u/s 138 of Negotiable Instrument Act, and even if he is taken to have been acquitted, he may be tried for any distinct offence for w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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